State ex rel. Muldrew v. Boles, 12687

• Citation: 159 S.E.2d 36,151 W.Va. 1033
• Decision Date: 23 January 1968
• Docket Number: No. 12687,12687
• Parties: STATE ex rel. Patrick L. MULDREW, Jr. v. Otto C. BOLES, Warden, etc.
• Court: West Virginia Supreme Court

Page 36

159 S.E.2d 36

151 W.Va. 1033

STATE ex rel. Patrick L. MULDREW, Jr. v. Otto C. BOLES, Warden, etc.

No. 12687.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1967.

Decided Dec. 12, 1967.

Concurring Opinion Jan. 23, 1968.

Syllabus by the Court

1. 'It is improper for a judge to try indictment signed by him as prosecuting attorney.' State v. Cottrell, Point 3 Syllabus, 45 W.Va. 837 (32 S.E. 162).

2. In a case in which a prisoner was released by habeas corpus from imprisonment in the state penitentiary on the ground that the indictment which formed the basis of his imprisonment was void, a new indictment is not invalid and a judge was not disqualified to preside as such in subsequent court proceedings resulting in the new indictment of the prisoner in the same court for the same offense because of the fact that such judge had acted as prosecuting attorney in all court proceedings leading to the previous conviction and sentence.

3. 'Where the record affirmatively discloses that a person accused of a crime expressly waived his constitutional right to assistance of counsel and his contitutional right to trial by jury and entered a plea of guilty to the charge, such waivers and such plea of guilty will not be held in a habeas corpus proceeding to be void on the ground that such waivers were not made intelligently and understandingly or that the plea of guilty was not entered intelligently and understandingly unless such contentions are supported by proper allegations and by a preponderance of the evidence.' (State ex rel.) Powers v. Boles, Warden, etc., Point 6 Syllabus, 149 W.Va. 6 (138 S.E.2d 159).

4. In a case in which a prisoner who has been released by habeas corpus from imprisonment in the state penitentiary on the ground that the indictment which formed the basis of his conviction and sentence was void and who was subsequently indicted upon the same charge and, upon conviction, was again sentenced to imprisonment in the state penitentiary, the prisoner was denied his rights under the due process and equal protection provisions of the Fourteenth Amendment of the Constitution of the United States and his rights under the due process provision of Article 1, s/ection 10 of the Constitution of West Virginia by the fairure of the trial court, in imposing the second sentence, to give credit to the prisoner on such sentence for time previously served by him as a consequence of his conviction under the prior void indictment.

5. An indictment charging one with having been an accessory before the fact to murder does not charge him with the actual commission of the crime as a principal; a plea of murder in the second degree entered by him to such indictment is void; a conviction rendered and a sentence of imprisonment imposed pursuant to such plea are void; and the prisoner is entitled to be discharged by habeas corpus from the imprisonment imposed upon him in such circumstances.

6. Moore v. Lowe, 116 W.Va. 165 (180 S.E. 1), is expressly disapproved to the extent that it holds that, under an indictment charging one with having been an accessory before the fact to murder, he may be convicted as a principal.

Bachmann, Hess, Bachmann & Garden, Gilbert S. Bachmann, Wheeling, for relator.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.

CALHOUN, President.

In this original habeas corpus proceeding, Patrick L. Muldrew, Jr., who may be referred to hereafter in this opinion as the relator or as the prisoner, seeks to be discharged from the state penitentiary where he is serving a sentence of life imprisonment imposed on February 1, 1965, by the Intermediate Court of Ohio County, pursuant to the habitual criminal statutes of this state, following a conviction upon his plea of guilty to an indictment in that court charging him with being an accessory before the fact to the commission of a murder. A statement of the factual background is necessary in order to present in proper perspective the grounds assigned by the prisoner in his habeas corpus petition, as amended by permission of this Court, to form the basis of the discharge he seeks.

In 1961, the prisoner was sentenced by the Intermediate Court of Ohio County to a term of life imprisonment pursuant to the habitual criminal statutes of this state, following his conviction by a jury of a charge of being an accessory before the fact to murder in the first degree with a recommendation of mercy. On August 3, 1964, he was discharged from that imprisonment in a habeas corpus proceeding by the Circuit Court of Marshall County, that being the county in which the state penitentiary is located, on the ground that the indictment charging the prisoner with having been an accessory before the fact to murder was void.

On August 11, 1964, the prisoner was again indicted in the Intermediate Court of Ohio County upon a charge involving the same alleged murder as that which formed the basis of the indictment, conviction and consequent sentence to life imprisonment in 1961. The charging part of this latter indictment is as follows:

'* * * did unlawfully, feloniously, and knowingly incite, instigate, move, procure, aid, counsel, hire, and command Robert Clinton Satterfield to feloniously, willfully, maliciously, deliberately, and unlawfully slay, kill, and murder one, Robert R. Nelson in the County of Ohio; and the Grand Jurors aforesaid do further present that, upon their oaths aforesaid, thereafter, the said Robert Clinton Satterfield, pursuant to said inciting, instigating, moving, procuring, aiding, counseling, hiring, and commanding in Ohio County, did feloniously, willfully, maliciously, deliberately, and unlawfully, slay, kill, and murder one, Robert R. Nelson, in said Ohio County with the intent aforesaid, although the said Patrick L. Muldrew, Jr., was not present at the scene of said crime * * *.'

In 1961, Thomas P. O'Brien was Prosecuting Attorney of Ohio County and, as such, represented the State of West Virginia in all the court proceedings leading to the life imprisonment sentence imposed in that year as previously stated in this opinion. At the time of the return of the second indictment and at all stages of subsequent proceedings consequent upon that indictment, culminating in the second sentence to life imprisonment from which the prisoner seeks to be discharged in this habeas corpus proceeding, Thomas P. O'Brien, the former prosecuting attorney, was the Judge of the Intermediate Court of Ohio County. He presided and acted in that capacity when the second indictment was returned by the grand jury of the Intermediate Court of Ohio County on August 11, 1964. Thereafter, Judge Thomas P. O'Brien disqualified himself from acting further as judge in the case, obviously because of the fact that he had acted as prosecuting attorney in the earlier stages of the case in 1961. In all subsequent proceedings in the case, including the imposition of the second sentence to life imprisonment from which the prisoner seeks to be discharged in the present case, Honorable James G. McClure, Judge of the Circuit Court of Ohio County, presided as Judge of the Intermediate Court of Ohio County.

The case was submitted in this Court for decision upon the habeas corpus petition, as amended by permission of this Court; upon a return and a demurrer to the petition filed in behalf of the repondent; upon a stipulation of facts relative to the manner of the endorsement and entry of the orders reciting the proceedings in the case while Judge McClure was presiding; and upon briefs in writing and oral argument of counsel.

Questions raised and asserted in behalf of the prisoner as basis for his discharge are, briefly summarized, as follows: (1) Was Honorable Thomas P. O'Brien legally disqualified to act as judge when the second indictment was returned by a grand jury of the Intermediate Court of Ohio County by reason of the fact that he had acted as prosecuting attorney in connection with the court proceedings leading to the former sentence to life imprisonment? (2) Was Honorable James G. McClure, Judge of the Circuit Court of Ohio County, vested with lawful authority to act as special judge in the case in the Intermediate Court of Ohio County? (3) Are certain specified court orders entered in the case setting forth proceedings before Judge McClure, while presiding as judge, void as having been endorsed or signed by Judge Thomas P. O'Brien who had previously disqualified himself from acting as judge in the case? (4) Will an indictment for the crime of accessory before the fact to murder support or warrant a lawful, valid plea of guilty to murder in the second degree? (5) Was the prisoner entitled to credit upon the second sentence for time served in the state penitentiary as a consequence of the former sentence to life imprisonment? (6) Was the prisoner's conviction of a felony in 1953 in the United States District Court for the Northern District of Ohio, Eastern Division, void because of denial of his constitutional right to assistance of counsel, denial of his right to trial by a jury and denial of his alleged right to be indicted by a grand jury? The 1953 conviction was one of the two alleged prior felony convictions of the prisoner charged in the information filed pursuant to the habitual criminal statutes of this state. (7) Did Judge McClure abuse his discretion in refusing to permit the prisoner to withdraw his plea of guilty to murder in the second degree?

We are of the opinion that the regular judge acted with complete propriety in the circumstances in disqualifying himself to act in this case following the second indictment. State v. Cottrell, 45 W.Va. 837, pt. 3 syl., 32 S.E. 162. See also Anno. 72 A.L.R.2d 443. It was not improper for him to preside and he was not disqualified from presiding as judge in the court proceedings in connection with the return by the grand jury of the second indictment, and his...